Movin’ on Up with the Federalist Society

By

September 13, 2001

How does a 1L at Harvard Law School end up singing arm-in-arm with one of the most influential judges on the federal appellate bench? If you are a student at almost any law school, not just one of the top ones, and you have remotely conservative interests, you too can join a student chapter of the Federalist Society and gain automatic admission to the highest echelons of right-wing politics and legal advocacy. Take Chris Ward, 31, a former Latin teacher who graduated from Harvard Law School this spring. As a first year student, he attended the society's annual national student symposium, held that year in Chicago. Afterward he repaired to a hotel bar where he and his friends joined in singing "For He's a Jolly Good Fellow" to Eugene Volokh, a UCLA law professor. Mingling with the group was Judge Alex Kozinski of the US Court of Appeals for the Ninth Circuit, a notorious card who is considered a leading candidate to become a Supreme Court Justice. Ward drew in Judge Kozinski for a few rounds. "I had just met him for the first time," Ward said. "I just thought it would be fun."

The chance to meet powerful legal luminaries like Kozinski is one of the special treats that come with membership in the Federalist Society. Headquartered in Washington, DC, the society was a focus of attention this spring because President George W. Bush used it to recommend nominees for the federal bench, a role traditionally assigned to the more moderate American Bar Association. But its real strength is its chapters in 150 law schools, which allow Federalists to gain access to the conservative elite, putting them in a superior position for competitive jobs with judges, law firms and now the Bush Administration.

Unlike twenty years ago, when liberal federal judges provided the most desirable clerkships for law school graduates, today the best "feeders" to the Supreme Court and White House are Reagan and Bush appointees. Judge Kozinski, who screens potential clerks for Supreme Court Justice Anthony Kennedy, says that seeing the Federalist Society on a résumé "tells me you're of a particular philosophy, and I tend to give an edge to people I agree with philosophically." The notion hasn't been lost on law students, some of whom keep two résumés, one with the Federalist Society tacked on. "I have seen some students go to the Federalist Society as a career builder," says Cass Sunstein, a professor at the University of Chicago Law School.

Federalists say the favoritism is long overdue; they grumble about what they describe as oppressive disdain from liberal law professors who make them the butt of jokes and left-leaning students who hiss at them in class. To redress this perceived discrimination, the Federalists have created a system that smacks of affirmative action for conservatives. It's an ironic twist for a group that generally opposes affirmative action, on the grounds that opportunity should be based on merit alone.

But the benefits of Federalist membership go beyond the usual advantages of affirmative action, like job promotion. They include the opportunity to change law, public policy and the judiciary. From law school chapters, students can graduate into one of the society's fifteen "practice groups," which provide a venue to design arguments that will be well received by the conservative wing of the Supreme Court. Practice-group leaders, who often have clerked for the Court or have argued before it, hold meetings and debates to formulate how to push case law toward Federalist principles.

Federalism, in its most basic form, is the idea that the federal government shouldn't encroach on the powers that the Constitution allegedly has reserved to the states. But the Federalist Society is an umbrella organization embracing all right-wing causes. Some members favor libertarian principles of individual rights over "big government"; others advocate strict-constructionist interpretations of the Constitution, which they claim represent the framers' intent. Whatever legal justification is offered to ground these views, the Federalist ideology is in effect a tool to eviscerate Congressional efforts to advance public policy goals where the states have failed. As critics point out, it benefits big business, it's anti-egalitarian, it shuts plaintiffs like the poor and disabled out of the courts, and it rolls back the New Deal notion that the courts have a role to play in helping the downtrodden. While the legal theories may appear tidy, they lack compassion, working to support favorite sons like gun manufacturers and HMOs.

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Federalist arguments include: Sexual-harassment and gender-equality laws impose illegitimate burdens on business; the powers of the Environmental Protection Agency should be exercised by the free market or, at most, by local or state government; juries are too unpredictable to be given the power to award punitive damages against large corporations but legitimate enough to be empowered to impose the death penalty; welfare laws by and large should be repealed; hate crimes are not a separate and more reprehensible category of criminal behavior than crimes not motivated by animus toward people of different races or sexual orientation; and the right of the people to keep and bear arms means empowering individuals to take up arms, not just preserving organized state-based militias.

However, the Federalist Society claims it takes no positions on issues. With its tax-exempt status requiring it to stay away from political activity, it hides behind the notion that it is merely a sophisticated speakers' bureau. "We are not a position-taking organization," Eugene Meyer, the society's executive director, told the Washington Post. (Meyer declined to comment for this story.) "We really are interested in discussion and in getting ideas heard." Even Judge Kozinski, a fairly ubiquitous presence at national events, won't say that he's a card-carrying member. "I'm on the mailing lists," he says. "And whether I attend depends on whether it is something I am interested in." The conservative intelligentsia repeats these lines again and again, as if afraid to say the obvious for fear it will reveal their true agenda. Meanwhile, under the dispassionate guise of a debating organization, the Federalist Society is working to prepare a powerful next generation of conservative corporate lawyers, judges, top government officials and decision-makers committed to fundamental change.

How the Federalist Society became a home for young conservatives is a tale told repeatedly by Federalists in trying to explain that they are not the majority but really a besieged minority. In 1982, the history goes, students at Chicago Law School and Yale Law School felt marginalized by the liberal doctrine and ideology that pervaded the curriculum and student body, and decided to form their own organization. The group named itself after James Madison's eighteenth-century Federalist Party, which allegedly favored decentralized government in its later years; and it rallied powerful faculty advisers to help: then-professors Ralph Winter of Yale, now a senior judge on the Court of Appeals for the Second Circuit, and Antonin Scalia of Chicago, now a Supreme Court Justice. The group operated on a shoestring for about a year, at which time student leaders landed seed money from the Institute for Educational Affairs, overseen by neoconservatives Irving Kristol and the late William Simon. Federalist chapters soon cropped up at the top schools around the country.

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Last year the society had annual financing of $3.1 million–a 117 percent rise since 1996. The Institute for Democracy Studies, which has been tracking the society, reported in a briefing paper that about a third of the society's budget comes from right-wing foundations. These include the Sarah Scaife Foundation ($175,000 in 1998), whose chairman, Richard Mellon Scaife, underwrote investigations of the Clintons; the John M. Olin Foundation ($349,404), which funds conservative law programs; the Castle Rock Foundation ($45,000, created with a $36 million endowment from the Adolph Coors Foundation), a supporter of anti-gay-rights groups; and the Charles G. Koch Charitable Foundation ($158,000), which is the creation of Koch Industries, the second-largest privately held company in the United States. Among large law firm donors are Munger Tolles & Olson, a mecca for former Supreme Court clerks, and Gibson, Dunn & Crutcher. The latter's partners have included Solicitor General Ted Olson (who argued the Florida election case for Bush before the Supreme Court); Eugene Scalia (Justice Scalia's son), Bush's nominee to become Labor Department Solicitor; and Miguel Estrada, a nominee to the Court of Appeals for the DC Circuit.

The Federalist Society's staff of thirteen oversees its three divisions, for lawyers, students and professors. The professors' division is relatively small, with only about fifty professors attending its second annual conference in January 2000. Its student division, however, hosts a national convention that this year attracted 250 people to Berkeley's law school, where the topic was "Is Technology Changing the Law?" After panel discussions there are dinners, which are the real reason most students attend. This year, students could meet federal judges Kozinski and Frank Easterbrook of the Court of Appeals for the Seventh Circuit, as well as former independent counsel Kenneth Starr. And fliers abounded inviting students to an annual summer barbecue at Ted Olson's house in Virginia. The Washington staff also helps students plan debates, giving advice on speakers and paying one airfare and hotel stay for every event. With the resources to bring in prominent people, the debates can be the most vibrant events of the school year.

During the summer, the society flies student leaders to Washington for a "leadership conference" to explain how to run a student chapter. A manual warns that liberal students may accuse the group of being part of a "national conspiracy masterminded by the notorious evil genius Irving Kristol." If this occurs, Federalists are advised, "the best solution is to try to portray them as being intolerant bullies and unscholarly." The society emphasizes that the debate format is crucial to "convince people of your viewpoint," and notes that "it is often productive to focus on the legal, rather than the policy or moral, aspects of the issues."

The formula came through in a round-table talk on Bush v. Gore at Seton Hall Law School in Newark on April 17 on "The Process and Substance of Litigating an Election." All panelists except one, Doug Cox, a Federalist practice-group leader who helped represent Bush before the Supreme Court, grappled with fairness issues: voter access, civil rights violations and the propriety of courts deciding elections. Cox, however, had a more legalistic approach, giving summary descriptions of the arguments in the briefs, petitions to the US Supreme Court and oral arguments. "We can definitely conclude that the legal system worked," he said. Though unexciting, he was civil and reasonable; simply by showing up and laying out arguments he appeared open to genteel debate. The other speakers seemed like foils. One top law school professor says she always rejects Federalist invitations for that reason. "The more I am willing to debate [certain right-wing advocates] the more legitimacy I give them," she says.

Often, student Federalists' greatest allies are conservative faculty whose jobs are funded by society supporters like the John M. Olin Foundation, which also gives money to law schools to foster interest in law and economics programs, which embrace ideas of free markets, anticommunism and criticism of the welfare state. At Yale last year, John M. Olin Professor George Priest, who teaches law and economics and serves as the Federalist Society's faculty adviser, received $175,000. Though professors like Priest are few in comparison with the number of moderate and left-leaning faculty, they ardently support conservative students. By contrast, even the best students say liberal professors generally have more students vying for their attention and don't feel the same impetus to mentor. "It's hard to get to know liberal professors in law school unless you are exceptionally persistent," said a former Supreme Court clerk who attended Harvard Law School.

Recommendations from professors with judicial connections are key for competitive clerkships. Clerks often provide the intellectual exchange that forms the basis of a judge's decision, and they frequently even draft opinions. Though each judge receives hundreds of applications, a few conservative judges seek out Federalists. Judge Michael Luttig on the Court of Appeals for the Fourth Circuit, for example, hires only students with membership in the Federalist Society or comparable credentials on their resumes. And almost all of Judge Luttig's clerks go on to clerkships at the Supreme Court. His unheard-of batting average is sustained because Judge Luttig diverts clerks who don't land a clerkship with other Justices to Justice Scalia (whom Luttig himself clerked for) and Justice Clarence Thomas. Justice Kennedy interviews applicants based on recommendations from a group of Federalist-friendly professors and Judge Kozinski, himself a former Kennedy clerk. Judge Kozinski stresses, however, that Federalist Society membership is only one factor. "If you are suggesting that it gets people jobs it's simply not true," Judge Kozinski says. "It's like saying you're in the Boy Scouts."

The Boy Scouts may be a good analogy for the clubbiness that exists among conservative clerks on the Supreme Court. Though the level of social cohesion changes from year to year, conservative clerks work and play together as a bloc in a way that moderate-to-left clerks generally do not. Most notable are the regular poker games held by clerks for Thomas, Scalia, Kennedy and Rehnquist. A recent clerk for a conservative Justice explained the alliance this way: "Conservatives tend to be team-oriented and rule-bound, whereas liberals tend to be odd and individualistic. Have you ever heard of a bunch of liberal people getting together and playing poker? They get together and go to protest marches. It's a simple fact of life." The other clerks don't bond because, except on abortion and states' rights cases, their Justices don't vote as a bloc. "The conservative clerks were a lot more strategic and a lot better coordinated than the liberal clerks," says one clerk about her time at the Court. Moderate-to-left clerks felt the clubbiness most keenly last year during Bush v. Gore. The conservative clerks and their Justices generally agreed with each other, but lack of alignment existed between some moderate clerks and their Justices. While Justice Kennedy is widely reported as having been the swing vote in the case, the conservative majority wouldn't have existed without the supposedly centrist Justice Sandra Day O'Connor. Her clerks disagreed with her but could not persuade her to join the splintered dissent, according to people who have spoken with O'Connor clerks as well clerks for other Justices.

These days, the right clerkships mean a straight shot into the White House. In the White House counsel's office, several young lawyers who suggest nominees for federal judgeships to the President have been actively involved in the Federalist Society. Among them are associate counsel Noel Francisco, 32 (Luttig/Scalia clerk); associate counsel Brad Berenson, 36 (Kennedy clerk); and Brett Kavanaugh, 35 (Kennedy clerk). In the Justice Department, 31-year-old R. Ted Cruz (Luttig/Rehnquist clerk), who helped prepare the briefs in the Florida election cases, is Associate Deputy Attorney General. And reviewing judicial nominees' written records is Assistant Attorney General for Legal Policy Viet Dinh, 33 (O'Connor clerk), a Georgetown professor who tried to obfuscate his politics at his confirmation hearing, claiming that "I am a member of the Federalist Society, and I do not know, quite frankly, what it all stands for."

Many young Federalists maintain their ties to the society after law school as officers in its fifteen "practice groups," which parallel the American Bar Association's committees to "improve" areas such as civil rights and religious liberties. Practice-group leaders are often connected to right-wing public interest law firms. Dr. Michael Greve, the co-founder of the Center for Individual Rights in Washington, DC, said Federalist discussions and debates in schools and practice groups have helped his organization conceive and shape litigation. "That is how I get ideas and sort of test them," says Greve, now at the American Enterprise Institute. And practice-group leaders, in conjunction with CIR, have been responsible for some of the greatest victories limiting Congressional authority. Solicitor General Olson, formerly the head of the federalism and separation of powers practice group, litigated the monumental Hopwood v. Texas decision, which put an end to affirmative action at the University of Texas. In 2000 Michael Rosman, vice chairman of the civil rights practice group and general counsel of CIR, led the fight to the Supreme Court that struck down a Violence Against Women Act remedy that allowed sexual assault victims to sue for damages in federal court. And last year, Michael Carvin, chairman-elect of the civil rights practice group, successfully brought Reno v. Bossier Parish School Board, a redistricting case that reduced the Justice Department's authority to require the creation of "majority-minority" voting districts.

Practice-group meetings are also a place for lawyers across the country to form alliances. One of the most important cases of the 1999 term had its genesis in such a meeting in Washington, DC, two years earlier. There, Jeff Sutton, a big-firm partner in Ohio who had clerked for both Justices Lewis Powell and Scalia, met Alabama Attorney General Bill Pryor. Pryor, a longtime Federalist who as a student founded Tulane's Federalist chapter, persuaded Florida Attorney General Bob Butterworth to hire Sutton to argue a case in which their states' interests had been consolidated, Kimel v. Florida Board of Regents. The five Federalist-friendly Justices on the US Supreme Court bought their separation-of-powers argument, which arguably became the harshest limitation on civil rights law enacted in the past twenty-five years. As a result, employees can no longer bring an action against states in federal court under the Age Discrimination in Employment Act. Sutton again argued for Alabama and, in University of Alabama et al. v. Garrett, successfully convinced the Court to strike down a part of the Americans With Disabilities Act. In a 5-to-4 vote this past February, the Court ruled that individual employees cannot sue their own states for damages in federal court. And this April, in a third case Sutton argued for Alabama, Alexander v. Sandoval, the Supreme Court eviscerated the right of an individual to sue for unintentional discrimination under a provision of the Civil Rights Act of 1964. The victories have put Sutton in good stead: President Bush nominated him to become a federal judge on the Court of Appeals for the Sixth Circuit.

Recently, liberals have been working to counteract the power of the Federalist Society [see sidebar, page 16]. But it will require a long, intensive struggle if those efforts are to be anywhere near as coordinated as those of their Federalist counterparts. Once young lawyers are brought into that world, they are unlikely to stray too far, as the case of Kristen Silverberg shows. After graduating from the University of Texas Law School, Silverberg, 30, became a clerk for Federalist Society regular David Sentelle, the DC Circuit Court judge who headed the judicial panel that appointed Ken Starr as an independent prosecutor. After her clerkship, Silverberg raised eyebrows when she chose to begin her law firm career at the undeniably liberal Williams & Connolly, which represented President Bill Clinton at his impeachment trial. She stayed a year, until Clarence Thomas granted her a Supreme Court clerkship–a rare feat for a Texas graduate in a Court where most clerks hail from Yale, Harvard, Stanford, Chicago and Columbia. There, Silverberg gained a reputation for being more moderate than Thomas's usual clerks. She then went to Austin to assist the Bush campaign, which tapped her to work against the Florida recount. Today she walks the halls of the White House as special assistant for policy in the office of the Chief of Staff.

One can never know precisely how personal experience motivates political values. But as of now, the most effective career path for young lawyers leads straight from the Federalist Society into the corridors of conservative power.